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Marine (Amendment) Bill
Victorian Legislation and Parliamentary Documents
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EXPLANATORY MEMORANDUM
General
This Bill primarily relates to amendment of the Marine Act 1988 and Port
Services Act 1995 to implement Government objectives for improving
public safety in the marine environment.
This Bill is designed to implement legislative changes foreshadowed by the
Government in its Response to Professor Russell's review of the port system
in Victoria. Other Reviews (i.e. 1998 National Competition Policy Review
of the Marine Act 1988 and the Review of the Marine Legislative Scheme in
1999) have also proposed that provisions relating to harbour masters in the
Port Services Act 1995 (Part 6) be consolidated and clarified within the
Marine Act 1988.
There is also a requirement for powers to introduce a national boating
initiative called the Australian Builders Plate. The intent is to allow for
regulations to be made that are consistent with the other States and the
Northern Territory.
Key legislative areas which are proposed to be addressed in this Bill include
amendment to the Marine Act 1988 to--
· consolidate and clarify within the Marine Act 1988 provisions
related to harbour masters, their functions and powers;
· clarify the powers and functions of local authorities (now
called waterway managers) in State waters;
· introduce a power to enable police and vessel surveyors to
conduct random vessel safety audits;
· make other changes to improve or clarify the operation of the
legislation;
and
to amend the Port Services Act 1995 to--
· preserve regulations made in connection with management of
local ports; and
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551137 BILL LA CIRCULATION 5/3/2004
· make other changes to improve or clarify the operation of the
legislation.
Victorian Legislation and Parliamentary Documents
Clause Notes
PART 1--PRELIMINARY
Clause 1 describes the main purposes of the Bill.
Clause 2 is the commencement provision.
PART 2--AMENDMENT OF THE MARINE ACT 1988
Clause 3 inserts various changes into the definition section of the Marine
Act 1988 by--
· inserting a definition of "certificate of competency" as
there is currently no definition in the Act;
· inserting a definition of "certificate of survey" as there
is currently no definition in the Act;
· inserting a definition of "harbour master licence" as
there is currently no definition in the Act;
· substituting a definition of "licensed harbour master" to
better describe a licensed harbour master;
· inserting a definition of "local port" to be consistent
with the Port Services Act 1995;
· inserting a definition of "local port manager" to be
consistent with section 44A of the Port Services Act
1995 in relation to a local port. The new definition of
Local Port Manager will replace the current definition
of the local authority (in so far as it applies to local
ports) that refers to "a person or body declared under
part 10 to be a local authority for a designated port";
· inserting a definition of "member of the police force" to
be consistent with the meaning in the Police Regulation
Act 1958;
· inserting a definition of "port corporation" to be
consistent with the Port Services Act 1995;
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· inserting a definition of "port management body" to
replace, in part, the definition of "local authority" in the
Act. This new definition encompasses, for the
Victorian Legislation and Parliamentary Documents
commercial trading ports, the Port of Melbourne
Corporation, for the port of Melbourne, and, the
Victorian Regional Channels Authority in relation to the
Port of Hastings, the Port of Portland and the Port of
Geelong, or if there is an agreement with a channel
operator to manage the ports of Geelong, Portland or
Hastings, that channel operator is the port management
body;
· inserting a definition of "port of Melbourne" to be
consistent with the Port Services Act 1995;
· inserting a definition of "Port of Melbourne
Corporation" to be consistent with the definition in the
Port Services Act 1995;
· inserting a definition of "waterway manager". This is a
new definition replaces, in part, the definition of local
authority, the replacement being as to those bodies that
were previously known as local authorities, declared by
an Order under section 3(3)(b) of the Act. These are the
persons or bodies who have responsibility for State
waters, other than the commercial trading ports and the
State waters declared for designated ports (local ports).
The definition of waterway manager also provides that
the Director of Marine Safety is the waterway manager
if there is no other person or body declared to be the
waterway manager for any particular State waters;
· substituting the definition of "harbour master" to extend
the definition to include persons authorised under
proposed section 26B to act as harbour masters;
· defining "licensed harbour master" to clarify the holder
of the licence as the licensed harbour master;
· extending the definition of "marine infringement" to
include a reference to offences against regulations made
under the Port Services Act 1995 in relation to local
ports. This extension is necessary to provide
appropriate powers to issue infringement notices under
regulations that will be made under Port Services Act
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1995 after 1 July 2004 which will relate to local ports.
Currently there are no infringement provisions for
marine offences under the Port Services Act 1995.
Victorian Legislation and Parliamentary Documents
However because the power to make regulations for
local ports will reside in the Port Services Act 1995
after 1 July 2004 it is necessary to ensure that adequate
powers to enforce any such regulations exist;
· omitting in the definition of "pilot" reference to a pilot
exempt master. The Act now clearly specifies
references to pilot or pilot exempt master;
· amending the definition of "vessel" to include
aeroplanes designed for and capable of being
waterborne while on the water.
Clause 3(2) substitutes the current section 3(3)(b) of the Marine
Act 1988 to clarify that the power to make an Order under the
paragraph only extends to waterway managers and does not
extend to local ports (the power to declare local ports is to be in
the Port Services Act 1995).
Clause 3(3) inserts sub-section (3A) in section 3 of the Marine
Act 1988 to allow the Minister by Order published in the
Government Gazette to amend, vary or revoke an Order, made
under section 3(3)(b).
Clause 4 inserts section 10A into the Marine Act 1988. The new section
establishes that the Register of recreational vessels maintained by
the Director does not provide evidence of title to any recreational
vessel.
Clause 5 paragraph (a) amends section 13 (1)(a) of the Marine Act 1988
to replace a reference to section 82 of the Act with a reference to
section 72. (This section has been amended as a consequence of
the amendments made in the proposed new Division in Part 8
referred to in clause 10).
Paragraph (b) amends the current section 13(1)(d) of the Marine
Act 1988 to clarify the bodies which may authorise a person, in
writing, to exercise the power to inspect vessels under
section 13(1).
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Clause 6 paragraph (a) amends section 16 of the Marine Act 1988
consequent on the change from the definition of local authority to
the new definitions of port management body, local port manager
Victorian Legislation and Parliamentary Documents
and waterway manager.
Paragraph (b) substitutes the current reference to regulations to
extend the reference to regulations made under the Port Services
Act 1995 that relate to local ports.
Clause 7 amends section 26(2)(b) of the Marine Act 1988 to omit the
words "or service" as they relate to a Certificate of Service.
This certificate is no longer issued by the Director under the
Marine Act 1988.
Clause 8 substitutes sections 26A to 26H of the Marine Act 1988 with
proposed sections 26A to 26HA, to insert a number of new
provisions relating to harbour masters which were previously
found in both the Marine Act 1988 and the Port Services Act
1995. Clause 8 consolidates these provisions in the Marine Act
1988.
Proposed section 26A requires the Port of Melbourne
Corporation or the Victorian Regional Channels Authority to
ensure that a harbour master is engaged for the commercial
trading ports. The provision also requires, for local ports and
other State waters, that the relevant managing body engage a
harbour master, if so determined by the Director. This clause
also provides for the imposition of penalty of up to 120 penalty
units.
Proposed section 26B allows for the appointment of an assistant
harbour master, after consultation with the harbour master
appointed for the waters and with the approval of the Director, by
the relevant body.
Proposed section 26C (1) defines the functions of a harbour
master.
Proposed section 26C(2) requires that the functions of the
harbour master are to be carried out in a manner that ensures the
safety of persons and the safe operation of vessels and minimises
the effect of vessel operations on the environment. This section
sets out the safety and environmental factors of the harbour
master's role in performing functions.
Proposed section 26D inserts a power for the harbour master to
carry out the functions of the harbour master under the Marine
Act 1988 or any other Act.
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Proposed section 26E provides that the harbour master may
give directions. The directions must be published in a manner
that makes them readily accessible to users of the port.
Victorian Legislation and Parliamentary Documents
This provision gives substantive effect to the requirement to
make directions transparent and accessible.
Proposed section 26F allows for the amendment and revocation
of directions.
Proposed section 26G provides that a harbour master must not
give any direction contrary to any laws relating to State waters or
which impedes customs or quarantine services in those waters.
Proposed section 26H allows for revocation and amendment of
any directions.
Proposed section 26HA this clause refers to the power of the
harbour master to carry out his own direction where no one else
is available and the harbour master has to act urgently.
Proposed section 26HB this clause makes it an offence to fail to
comply or to obstruct a harbour master's direction.
Proposed section 26HC relates to identity cards for harbour
masters and has increased the requirements of the form of the
identity card. Sub-section (4) requires the harbour master, giving
a direction to verbally, to warn the person to whom the direction
is given, that the failure to comply may be an offence.
Proposed section 26HD inserts a power for the issue of a harbour
masters licence.
Proposed section 26HE inserts a provision to allow for the
imposition of a condition by the Director on the licence of a
harbour master. The condition can only be varied after
consultation with the person or body engaging the harbour
master.
Clause 9 inserts into section 26I of the Marine Act 1988 the new
definition of local port manager and waterway manager to
replace the previous definition of local authority.
Clause 10 inserts a new Division 2 into Part 8 of the Marine Act 1988 in
relation to the appointment of inspectors.
This Division takes the place of sections 82A to 82C of the
Marine Act 1988. The change allows for the appointment of
inspectors for the purposes of Division 3 of Part 8 and for the
purposes of exercising the new powers of random audits
inserted into the Marine Act 1988 by proposed section 77.
Proposed section 77 will allow an inspector or a member of the
police force to enter and search a recreational or commercial
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vessel to ensure that the vessel complies with the requirements
under the certificate of survey or the regulations as to design,
construction, equipment and operation.
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Clause 11 substitutes sections 82 to 82C of the Marine Act 1988 with
proposed new section 82 which inserts a definition of inspector
for the purposes of investigations under Division 3 of Part 8.
Clause 12 sub-clause (1) amends section 84(1) of the Marine Act 1988 to
insert a power for the Director to conduct an investigation into an
alleged breach of conditions of a harbour masters licence.
This provision allows the Director to use the penalties associated
with the investigation process to deal with beaches of conditions
of a harbour master licence.
Sub-clause (2) extends the right to provide a defence to any
breach of licence conditions investigations by the Director.
Clause 13 inserts a provision to allow for an appeal to Victorian Civil and
Administrative Tribunal against imposition of conditions by the
Director on a harbour master licence.
Clause 14 amends section 87(1) of the Marine Act 1988 to include
regulations relating to local ports made under the Port Services
Act 1995. This will enable prosecutions for breaches of those
regulations to be brought.
Clause 15 amends section 94 (1) of the Marine Act 1988 to clarify that a
certificate of competency is required for crew members.
Clause 16 inserts proposed new sections 99C to 99F. Proposed section 99C
of the Marine Act 1988 is inserted to clarify what the certificate
of competency is, as there was previously no provision for this.
The provision is required as there are offence provisions in the
Marine Act 1988 relating to certificates of competency.
Proposed section 99D of the Marine Act 1988 requires that the
holder of a certificate of competency comply with any conditions
imposed by the Director.
Proposed section 99E of the Marine Act 1988 allows the
Director to issue a certificate of survey.
Proposed section 99F of the Marine Act 1988 provides for an
offence for failure to comply with the requirements of the
certificate of survey.
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Clause 17 amends sections 101(1), (2) and (3) of the Marine Act 1988 to
include a reference to regulations relating to local ports.
This amendment will ensure that there will be adequate power to
Victorian Legislation and Parliamentary Documents
serve notices when regulations are made under the Port Services
Act 1995.
Clause 18 inserts a regulation making power to enable harbour master
directions to be placed in regulations.
Clause 19 inserts a regulation making power in section 105 of the Marine
Act 1988 for fees that may be charged by waterway managers for
services provided by waterway managers.
Clause 20 inserts a new Part 10 into the Marine Act 1988 which sets out
the functions and powers of waterway managers. The waterway
managers were previously referred to as local authorities for
specified State waters other than designated ports (local ports).
Clause 21 inserts a new Division 5 of Part 11 into the Marine Act 1988.
This new part contains the saving provisions for certificates of
service already issued, declarations of local authorities and
harbour master appointments and harbour master directions.
Clause 22 sub-clause(1) omits reference to certificates of service in
Schedule 4 of the Marine Act 1988 as they are no longer issued
by the Director under the Marine Act 1988.
Sub-clause (2) inserts power for the Director to amend, vary or
revoke the licence of a harbour master in that Schedule.
Clause 23 sub-clause (1) amends the regulation making powers in
Schedule 5 of the Marine Act 1988 to delete references to
certificates of service as they are no longer issued by the
Director.
Sub-clause (2) extends item 59 of Schedule 5 of the Marine Act
1988 by adding the words "the information that is to be contained
on them". This extension of the regulation making power is
required to enable Victoria to introduce the model clauses for the
Australian Builders Plate into regulations.
Sub-clause (3) inserts a new regulation making power in
schedule 5 of the Marine Act 1988 to allow for the introduction
of regulations to enable the mutual recognition of licences and
certificates of competency from other jurisdictions.
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Clause 24 amends the safety standards for pilotage service providers to
include in the definition of "pilot", "pilot exempt master".
Victorian Legislation and Parliamentary Documents
This will ensure that the fatigue management system in place for
pilots will apply to pilot exempt masters.
Clause 25 makes provision for further amendments to the Marine Act 1988
in the Schedule.
PART 3--AMENDMENT OF THE PORT SERVICES ACT 1995
Clause 26 amends the definition of harbour master in the Port Services Act
1995 to have the same meaning as in the Marine Act 1988.
Clause 27 amends cross references in the Port Services Act 1995 in
relation to the sections referring to harbour masters in the
Marine Act 1988.
Clause 28 repeals sections of the Port Services Act 1995 relating to
harbour masters that were consolidated into the Marine Act
1988.
Clause 29 amends section 91 of the Port Services Act 1995 to clarify that
the section continues to apply to the harbour masters to which it
previously applied.
Clause 30 inserts a new section 184 in to the Port Services Act 1995.
This clause has the effect of exempting, on certain conditions,
regulations to be made under the Port Services Act 1995 relating
to local ports, from the consultation and regulatory impact
statement process required under the Subordinate Legislation
Act 1994. The Minister will be required to certify in writing that
the regulations to be made under the Port Services Act 1995
relating to local ports are the same in substance as the Marine
(Designated Ports) Regulations 2004 to be made under the
Marine Act 1988.
SCHEDULE
Schedule inserts further amendments to the Marine Act 1988 to amend
sections of the Marine Act 1988 to change references to "local
authority" in certain sections to the new terms of port
management body, local port manager and waterway manager.
These amendments merely clarify the existing reference to the
old terminology of local authority.
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